Woodstock Iron Works v. Kline

HARALSON, J. — The pleadings were settled on a former appeal. — 143 Ala. 632, 42 South. 27. There were then three counts in the complaint, and five p-leas of contributory negligence. Another count, the fourth, since the reversal and remandment of the cause, was added. The case was tried, the last time, on the first count,, which was filed under subdivision 3 of section 1749 of. the Code of 1896 — employer’s liability act — and the fourth count, which was under subdivision 2 of said [399] section. To this count defendant pleaded the statute of limitations of one and two years. 1. On the former appeal it was held that a minor, such as deceased was, 18 1-2 years old, is presumed to have the same intelligence in assuming the risks of an employment, as an adult has. It was averred in the first-count, that the deceased was a minor and without experience as a brakeman, which position he filled when he was killed. If the deceased was inxperienced and needed special instruction, this was a mattr to be shown by the plaintiff’s evidence in the cause.- It was further held, that when a minor reached the age at which he is presumed to have sufficient intelligence to assume the risks of the employment, and gives assurance that he understands' the details of the positipn assumed by him, it is not incumbent on the employer to give him special instructions; but, if he is inexperienced, and not supposed to be acquainted with the dangers of the risk, and expresses a willingness to undertake it, this does not relieve the employer of the duty not to send him on a perilous journey connected therewith, without, at least, giving him proper instructions. 2. There was no error in allowing proof of what the absent witness, Fipps, swore on the former trial. A sufficient predicate had been laid therefor in the evidence of Olive, Hubbard, Woodruff and Boozer. It was shown that a subpoena issued for him as a witness in the case, to the sheriff of Calhoun county; that the sheriff made diligent search and inquiry for him and could not find him, and that Fipps left the county and said, on leaving, that he was going back to his home in Tennessee Avhere he lived. — Percy v. State, 125 Ala. 52, 27 South. 844; Jacobi v. State, 133 Ala. 1, 32 South. 158; Perry v. State, 87 Ala. 30, 6 South. 425; 3 Mayfield’s Dig, 498, § 1235. The addition of count 4, after the former trial, did not affect the competency of this eAddence. It made no new case, and nothing in it affected the witness’ former testimony. What he then said was as applicable to- the case with, as Avithout the fourth count. 3. The Avitness, O’Bouke, was asked by the plaintiff: “As a. railroad man I will ask you, whether or not let [400] ting empty cars, say seven empty cars down an incline 20 feet high, — down that incline, whether or not in carrying them on down to the track on the ground, is a dangerous business, perilous to the person who rides them down?” and he replied, that it was dangerous. The defendant objected to the question because it called for illegal, irrelevant and immaterial evidence. In argument, counsel insist that the witness ivas not shown to be expert. He had, however, just testified to facts shoiving that he ivas competent on that score, and the evidence ivas certainly not incompetent or irrelevant under the pleadings. 4. Hill, a witness for defendant, was asked by him, “Whether or not there ivas any difficulty in stopping a string of seven cars going down that incline with two brakes, before they reached the Oxford Lake crossing?” The plaintiff objected, because the witness was not shown to be an expert. The witness answered questions by the court, that he never followed braking as a business, but he had worked off and on, occasionally, and could not say that he understood the business thoroughly. The court sustained the objection, and it does not appear that it erred in so- doing. 5. Having examined the several charges given for the plaintiff, we are impressed that there was no error in giving them. — King v. Woodstock Iron Co., 143 Ala. 632, 42 South. 27. 6. Charge 1, requested by defendant, was properly refused. The first charge requested by plaintiff, held to be proper under the evidence, asserted a contrary principle to the one here set up, instructing that what Fipps said to deceased, as to getting on the cars, amounted to an order for him to do so. 7. Charge 2, requested for defendant, was calculated to mislead the jury, and was properly refused. Furthermore, the principle enunciated in this charge was substantially given in other written charges requested by defendant. 8. Charge 4, which was the affirmative charge as to count 4, was properly refused. There was evidence tending to support said count. [401] 9. Charge 5 is substantially covered, by given charge 9 for defendant. Charge 31 is argumentative, and was properly refused on that account. 10. The only insistence for charges' 8 and 11, requested by defendant, is that there was no evidence tending to show that Fipps knew that deceased was inexperienced, whereas the evidence in the case afforded ground for the inference to the contrary. 11. Charge 14 was correctly refused. It Avould have been difficult for the jury to understand it. What is meant by the expression, “that the death of Olive Avas caused by some other cause,” is not well understood, and was authorizing the jury to speculate as to the cause, and was calculated to mislead and confuse them. The order of Fipps might have led to the accident without being its cause. The collision of the gondola cars Avith the standing car on the track Avas the real cause of the accident. The negligent manner of letting them doAvn the grade, and the want of care in controlling them as they descended may have contributed to bring about this result. As a whole, the charge was well calculated to confuse and mislead the jury. 12. Charges 17 and .32 were properly refused. The suit was properly instituted by the personal representatiAre of the deceased, and it AAras unnecessary to allege and prove that the deceased left surviving him any heirs at larv. — C. & W. Ry. v. Bradford, 86 Ala. 574, 6 South. 90. As Avas said in that case: “A collateral fact of that character, the existence of which in almost all cases is common knowledge will be presumed.” Charge 25 was abstract and not improperly refused on. that account. Charge 26 asserts a proposition not raised in the pleadings in the cause and Avas properly refused. Charge 28 goes beyond the matters set up in the pleas and shown by the evidence, and was, therefore, properly refused. In this case it does not appear that there were no distributees of deceased’s estate, to whose benefit the money would inure. 11 is only in such case, that the re [402] covery is held to he limited to nominal damages.— James r. R. & D. R. R. Co., 92 Ala. 231, 9 South. 335; T. G. G. & I. Go. v. Enslen, 129 Ala. 348, 30 South. 600. Here it was shown that deceased had a father who survived him, and it urns not shown, or attempted to be shown, that he left no other distributees. His earning capacity, his age, probable duration of life, habits of industry as were shown, business, etc., furnishes proper data from which a pecuniary compensation might be fixed by the jury. — L. & N. R. R. Co. v. Orr 91 Ala. 548, 8 South. 360; James v. R. & D. R. R. Co., 92 Ala. 231, 9 South. 335; McAdory v. L. & N. R. R. Co., 94 Ala. 272, 10 South. 507; Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 348, 30 South. 600. 13. It is proper to add that deceased was killed on the 13th of-November, 1901, and this suit tvas commenced on the 32th of November, 1902. The fourth count, by way of amendment to the complaint,, was filed on the 4th of December, 1905. It was certainly within the lis pendens and was, therefore, not barred. — Nelson v. First National Bank, 139 Ala. 578, 36 South. 707, 101 Am. St. Rep. 52. The motion for a new trial, which we have considered, was, in our judgment properly overruled. — Reiter-Connolly Mfg. Co. v. Hamlin, 144 Ala. 194, 220, 40 South. 280. Affirmed. Tyson, C. J., and Simpson and Denson, JJ., concur.